On
March 30, 2007, Matthew Troy Evans, the self-represented
petitioner, was found guilty by a jury of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count One); possession of body armor by a
person convicted of a crime of violence, in violation of 18
U.S.C. § 931 (Count Two); and possession of ammunition
by a convicted felon, in violation of 18 U.S.C. §
922(g)(1) (Count Three). On October 19, 2007, Judge Andre
Davis[1] determined that Evans qualified as an
Armed Career Criminal and sentenced Evans to a total term of
incarceration of 235 months.[2] ECF 43; see 18 U.S.C.
§ 922(g)(1); 18 U.S.C § 924 (e)(1); see
also ECF 50 (Sentencing Tr. of Oct. 19, 2007) at 68-69.

Evans
noted an appeal to the Fourth Circuit (ECF 45), which
affirmed on February 18, 2010. See ECF 59;
United States v. Evans, 361 Fed. App‘x 524,
525 (4th Cir. 2010). The Supreme Court denied Evans‘s
petition for a writ of certiorari. Evans v. United
States,560 U.S. 918 (2010).

Thereafter,
on May 16, 2011, Evans filed a motion to vacate under 28
U.S.C. § 2255 (ECF 61), which he supplemented on May 27,
2011 (ECF 63) (collectively, "First Petition"). The
government opposed the First Petition (ECF 67) and Evans
replied. ECF 70. In a Memorandum Opinion (ECF 72) and Order
(ECF 73) of March 29, 2012, Judge Quarles granted the First
Petition in part and denied it in part. In particular, the
Court agreed with both Evans and the government that Evans
was unlawfully convicted of unlawful possession of body
armor. ECF 72 at 12-15; ECF 73. Therefore, Judge Quarles
vacated the conviction for Count Two as well as the
corresponding 36-month sentence. ECF 73. Judge Quarles
rejected all other claims.

Thereafter,
on June 6, 2012, Evans noted an appeal to the Court of
Appeals for the Fourth Circuit. ECF 74. The Fourth Circuit
dismissed the appeal on August 21, 2012. ECF 78.
Evans‘s petition for a rehearing en banc (ECF
80) was denied on October 30, 2012. ECF 81.[3]The mandate issued
on November 13, 2012. ECF 82.

On
October 3, 2016, Evans filed a second Motion to Vacate, Set
Aside, or Correct a Sentence ("Second Petition"),
pursuant to 28 U.S.C. § 2255. ECF 84. He relies on
Johnson v. United States, U.S., 135 S.Ct. 2551
(2015). In a skeletal, bare-bones submission, the government
moved to dismiss the Petition (ECF 86, "Motion") on
the ground that it was untimely. The government did not
address Evans‘s submission in 2011 of the First
Petition under 28 U.S.C. § 2255, or the significance of
the submission of the Second Petition, without prior approval
of the Fourth Circuit. Evans filed a lengthy reply to the
Motion on December 12, 2016. ECF 87 ("Reply").

Section
2255(a) of Title 28 of the United States Code, under which
Evans filed his Petition, provides relief to a prisoner in
federal custody only on specific grounds: that the sentence
was imposed in violation of the Constitution or laws of the
United States; that the court was without jurisdiction to
impose such a sentence; that the sentence was in excess of
the maximum authorized by law; or that the sentence is
otherwise subject to collateral attack.

Under
28 U.S.C. § 2255(b), the court must hold a hearing
"[u]nless the motion and the files and records
conclusively show that the prisoner is entitled to no relief.
. . ." See, e.g., United States v.
White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have
determined that a hearing is not necessary where "the
motion . . . fail[s] to allege sufficient facts or
circumstances upon which the elements of constitutionally
deficient performance might properly be found [or] where the
defendant has failed to present any affidavits or other
evidentiary support for the naked assertions contained in his
motion." United States v. Taylor, 139 F.3d 924,
933 (D.C. Cir. 1998) (internal quotation marks and citation
omitted); accord United States v. McGill, 11 F.3d
223, 225-26 (1st Cir. 1993). On the other hand, a hearing is
generally "required when a movant presents a colorable
Sixth Amendment claim showing disputed material facts and a
credibility determination is necessary to resolve this
issue." United States v. Robertson, 219 Fed.
App‘x 286, 286 (4th Cir. 2007); see also United
States v. Ray, 547 Fed. App‘x 343, 345 (4th Cir.
2013).

In
reviewing the Second Petition, the Court is mindful that a
self-represented litigant is generally "held to a
‗less stringent standard[ ]‘ than is a lawyer,
and the Court must liberally construe his claims, no matter
how ‗inartfully‘ pled." Morrison v.
United States, RDB-12-3607, 2014 WL 979201, at *2 (D.
Md. Mar. 12, 2014) (internal citations omitted); see also
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines
v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims
of self-represented litigants are held "to less
stringent standards than formal pleadings drafted by
lawyers"); Bala v. Commonwealth of Virginia
Dep't of Conservation & Recreation, 532
Fed.App'x 332, 334 (4th Cir. 2013) (same). Nevertheless,
in my view, no hearing is necessary to resolve Evans‘s
claims.

B.

In the
Second Petition, Evans claims that the Court should not have
sentenced him as an Armed Career Criminal in light of the
Supreme Court‘s decision in Johnson v. United
States, U.S., _______ 135 S.Ct. 2551 (2015). ECF 84. In
Johnson, the Supreme Court invalidated the residual
clause of the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B)(ii), ruling that the definition of a
“violent felony”was unconstitutionally vague. 135
S.Ct. at 2555-57. The Court determined that the residual
clause “did not articulate clearly how to evaluate the
risks of injury posed by a crime, depriving defendants of
fair notice regarding their potential sentence and inviting
‗arbitrary enforcement by judges.”United
States v. Winston, __ F.3d__, 2017 WL 977031, at *2 (4th
Cir. Mar. 13, 2017) (explaining and quoting Johnson,
135 S.Ct. at 2557). The Supreme Court has also recognized
that Johnson announced a new substantive rule of
constitutional law, which applies retroactively on collateral
review. Welch v. United States, U.S., _________ 136
S.Ct. 1257, 1264-65 (2016).

However,
this is Evans‘s Second Petition. Therefore, 28 U.S.C.
§ 2255(h) is pertinent. It provides:

A
second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals
to contain--

(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
or

(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.

A
second or successive petition must be authorized by the
appropriate appellate court. See Winston, supra,
2017 WL 977031, at *3; United States v. Poole, 531
F.3d 263, 266 n.4 (4th Cir. 2008). There is no indication
that Evans sought or obtained such authorization.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Nevertheless,
the Fourth Circuit has recognized that not every second
petition filed under &sect; 2255 is a &ldquo;second or
subsequent&rdquo; within the meaning of &sect;
2255(h).&rdquo; To illustrate, a petition following a
resentencing is not a second petition. See, e.g., United
States v. Jones, No. 16-6552, 2017 WL 1040471 (4th Cir.
Mar. 17, 2017) (per curiam); In re ...

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